Conciliation of claims

Labour & European Law ReviewWeekly Issue 50901 March 2017

When a potential tribunal claim is successfully resolved by conciliation, the parties sign what is known as a COT3 agreement and the claimant withdraws their claim. In Department for Work and Pensions v Brindley, the Employment Appeal Tribunal (EAT) held that the COT3 agreement only covers the “specific factual matrix of the proceedings” of the original claim and not a later one, even if the facts are similar.

Basic facts

Ms Brindley presented a claim in July 2014 that her employer had discriminated against her because of her disability by refusing to allocate her a parking space after a reorganisation. As a result, she had to park further away which exacerbated her disability and meant that she was off work for two weeks.

In April 2014 Ms Brindley had been given a final written warning for sickness absence. In November 2014 she received another final written warning for attendance. Her appeal against this warning was dismissed in January 2015. Following conciliation, the parties signed a COT3 agreement in December 2014 and Ms Brindley withdrew her tribunal claim. This agreement settled her tribunal claim “and all other Relevant Claims arising from the facts of the Proceedings up to and including the date [of] this agreement”.

In June 2015, however, Ms Brindley brought a second claim arguing that, by giving her another final written warning about her attendance in November 2014, her employer had again discriminated against her because of her disability. The department argued that this claim was barred by the December 2014 settlement agreement.

Tribunal decision

The tribunal judge held that the first claim related to car parking, reasonable adjustments and the first final written warning issued on 11 April 2014. The second claim related to a second final written warning issued in November 2014. The COT3 did not say that the “relevant claims” included “all or any claims arising within the period up to 11 December 2014 (the date that the COT3 was signed)”. Nor did it refer to “all other relevant employment claims”. The COT3 qualified “all other relevant claims” with the words “arising from the facts of the Proceedings” - that is, the facts of the first claim.

On that basis, the judge concluded that a reasonable person would consider that all claims arising from the circumstances of the first claim had been settled, but that the new circumstances referred to in the second claim were not part of the settlement. “The second claim did not arise from the facts of the first claim. It was a separate claim about a different warning in a different time frame.”

EAT decision

And the EAT agreed, holding that “a relevant claim is caught if it arises from the specific factual matrix of the proceedings”. In this case, that meant the first written warning given in April 2014 for absence caused by a disability which Ms Brindley had argued was due to the withdrawal of her parking space in early 2014. Contrary to the department’s argument, the “relevant factual matrix” was not the general process of applying the department’s attendance management policy to her.

It was clear from the facts that the April 2014 final written warning had been rescinded by the date of the COT3. However, if it had been reinstated after the pleadings were closed, but on or before the date of the COT3 (11 December 2014) then that action would have arisen “from the facts of the Proceedings up to and including the date [of] this Agreement” and would have been settled.